Upon full consideration of the motions of Charles and Carrie Babbige and of E.G. Hanrick, nothing has been found requiring further discussion except the point raised by the motion of E.G. Hanrick, which was referred back for further argument.
All of the grounds of the motions except that are therefore disallowed.
We are convinced, however, that the defense of E.G. Hanrick, based upon the judgment in the Eubanks case as an estoppel against Nicholas Hanrick to assert his title to any of the land in the Zarza grant, should have been sustained. The judgment was pleaded as an estoppel applicable only to Nicholas Hanrick's claim to an interest in that grant, and hence its effect upon his title to lands in the Serda grant can not be considered.
The case was originally briefed and submitted upon the findings of *Page 480 the trial court alone, and in them there was no statement that the demurrer in the Eubanks case was sustained upon the ground that the plaintiff therein was not an heir of Edward Hanrick; the only finding on this point being that a general demurrer was sustained and final judgment rendered against the plaintiff. We now find in the statement of facts the substance of the pleadings and the judgment in that case, from which it appears that the demurrer was rested and sustained upon the ground that the facts alleged by plaintiff showed that no title had descended to him by inheritance from Edward Hanrick. While the cause of action in that case was not the same as that now asserted, the question as to Nicholas Hanrick's right to inherit from Edward was and is directly involved in and common to both cases, and was expressly adjudicated in the former. Although the judgment of the court was, as we formerly held, only a denial of the right to recover the particular land there in controversy, its estoppel is much broader and concludes the parties upon every question which was directly in issue and was passed upon by the court in arriving at its judgment. Cromwell v. Sac County, 94 U.S. 353; Nichols v. Dibrell, 61 Tex. 541; Birckhead v. Brown, 5 Sandf., 145; Boyd v. Alabama, 94 U.S. 645; Southern Pac. R. Co. v. United States,168 U.S. 49; Beloit v. Morgan, 7 Wall., 621; McDonald v. Mobile Insurance Co., 65 Ala. 358; Freem. on Judge., sec. 256-259.
In the case first cited, the difference between the rule as to the effect of a judgment upon the cause of action adjudicated, and that as to the scope of the estoppel upon questions in issue and determined, where they arise in subsequent litigation between the same parties concerning a different cause of action, is thus stated: "There is a difference between the effect of a judgment as a bar or estoppel against the prosecution of a second action upon the same claim or demand, and its effect as an estoppel in another action between the same parties upon a different claim or cause of action. In the former case, the judgment, if rendered upon the merits, constitutes an absolute bar to a subsequent action. It is a finality as to the claim or demand in controversy, concluding parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose. * * * But where the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered."
That the estoppel concludes the parties upon the questions of law, as well as those of fact which are in issue, is fully established by the other authorities cited, as well as the further proposition that a final judgment upon the merits on demurrer is equally conclusive of questions decided, as are other judgments. There are a few cases which do not recognize the rule as above quoted, but they are opposed to the great weight of *Page 481 authority and are not regarded as sound. Counsel for Nicholas Hanrick do not controvert the rule, but urge that it is inapplicable here for the reason that E.G. Hanrick's relation to the former action, involving Eubanks' title to the land there sued for, was not such as to make the determination of the issues therein raised binding either on him or the plaintiff therein in other suits involving their claims to other lands. Their position is best stated in their own language: "E.G. Hanrick was vouched in as warrantor by Eubanks, and put in the exceptions asserting noninheritable alienage, not in his own interest or right, but in the interest and right necessarily of Eubanks. In doing so, he was exercising the statutory right of defending, either in his own name or the name of his warrantee, on behalf of the warrantee. He, in his own right and interest, was not an adversary of the plaintiff; he, in his own right and interest, was not a party and could not properly have been. In appearing and defending, he did so merely in the exercise of his right as warrantor, in the interest and on the title of his warrantee and not his own, and in the representative capacity or quality of warantor."
E.G. Hanrick was a party to that action, according to every definition of the term. 1 Greenl., Ev., 522, 523. It was his right and his duty "to make such defense as if he had been the original defendant in the action." Rev. Stats., art. 3552. The plea that the plaintiff had no capacity to inherit the land from Edward Hanrick, and hence no title to land claimed as heir, was such a defense. He made it and established it by the judgment of the court. This meets every condition of the rule laid down above. The same question upon which Nicholas Hanrick now relies was put in issue between the same parties and was determined. To hold that it may be again put in issue where it arises between these parties in another controversy, would be to contradict the very terms, as well as the spirit and the purpose, of the rule. E.G. Hanrick, as he was bound to do, defended against plaintiff in the former suit the title which he had conveyed to Eubanks, and controverted the plaintiff's right to inherit the same property. In so doing, he asserted his own right in the same capacity or quality in which he now asserts it. That his object in doing so was to make good the title of Eubanks and protect his warranty, does not affect the question, since he was a party and had the right to make it and enforce it by all the means open to other litigants. The authorities are as decisive of this branch of the question as of that first discussed. Greenleaf, supra; Castle v. Noyes, 14 N.Y. 329; Lovejoy v. Murray, 3 Wall., 1, and authorities cited; Freem. on Judg., secs. 174, 179, 186, 187.
It is urged, also, that the plea of estoppel was not sufficient to let in evidence to sustain the defense. The plea was very general and would doubtless have been held insufficient on special demurrer, but was sufficient, without such objection, to admit evidence. It specified the proceeding in which the judgment was rendered, stated the parties to it, and alleged that the plaintiff therein claimed title to the Zarza grant *Page 482 by inheritance from Edward Hanrick, and that the question as to his right to do so was asserted by his petition, and was, on demurrer of the defendant, adjudicated against him. This shows that the same title by inheritance here asserted, was, by the judgment, held insufficient.
The rehearing asked for by E.G. Hanrick will be granted, and the judgment of the Court of Civil Appeals will be further reformed so as to deny to Nicholas Hanrick a recovery as to lands in the Zarza grant, and to adjudge the interest therein recovered by him to E.G. Hanrick.
Judgment reformed.
Delivered March 29, 1900.